The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court for disposition are the following:
MOTION FOR SUMMARY JUDGMENT (Document No. 19)
filed by defendant Donzi's Bar, with brief in support
(Document No. 20) ("Motion" and "Brief,"
PLAINTIFF'S REPLY TO THE DEFENDANT, DONZI'S BAR'S
MOTION FOR SUMMARY JUDGMENT (Document No. 25)
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT
DONZI'S MOTION FOR SUMMARY JUDGMENT (Document No.
26) ("Plaintiff's Brief").
After considering the filings of the parties, the evidence of
record and the relevant statutory and case law, the Motion for
Summary Judgment will be granted in part and denied in part.
This civil rights action arises out of events which occurred in
the early morning hours of November 11, 2001. Plaintiff Michael
Kossler ("Kossler") and his friend John Trelecki ("Trelecki")
arrived at defendant Donzi's Bar ("Donzi's") at approximately
11:00 p.m. and "socialized, talked, walked around a little bit,
maybe danced a little bit, [and] had a couple of beers . . ."
Kossler depo. at 13. Defendant Steven Crisanti ("Crisanti"), a
City of Pittsburgh Police Officer, was working an "off-duty" detail, or secondary
employment position, at Donzi's. Crisanti depo. at 26, 30. With
the exception of his official police baseball cap, Crisanti was
dressed in his full police uniform. Id. at 85.
Kossler and Trelecki left Donzi's at approximately 2:00 a.m.
because Donzi's personnel "were asking anybody (sic) to leave."
Kossler depo. at 13.*fn2 Upon exiting the bar, they walked
up a ramp toward a parking lot. Id. at 14. Specifically,
Kossler testified at his deposition that he and Trelecki were "at
the top of the ramp where it turns into a sidewalk and there is a
little landing area . . . you take two or three steps down, you
are in the parking lot . . ." Kossler depo. at 17.
Kossler and Trelecki were not yet in the parking lot when a
fight broke out on the sidewalk at the top of the ramp. Id. at
17. When the fight started, Crisanti was standing on what he
describes as an "island" in the parking lot located next to the
entrance to Donzi's. Crisanti depo. at 80. What happened next is
in dispute. Crisanti's version of the events is as follows:
There was, apparently, a fight at the top of the
steps going down towards Donzi's. I ran over to break
up the fight, and someone grabbed me from behind,
twisted me around. That was Mr. Kossler. I looked him
right square in the eye. I observed what he was
wearing. I pushed him off me. I ran over to the
Pltf's appx., ex. 3, p. 3.*fn3
According to Crisanti, the
fight was broken up by Donzi's security personnel before he could
reach the fight. Id. at 8-9.
Trelecki, on the other hand, told a different story at his
[Crisanti] got in the middle of trying to got in
the middle of a couple of kids that were throwing
punches and pushing each other, and it was just
getting hectic because all the kids were starting to
surround now, and it wasn't a one-on-one battle, it
started to turn into more and more kids, escalating,
getting involved in this.
I went over and smacked Officer Crisanti, tapped him
on his back to tell him I was helping him out, trying
to break up the kids so he didn't think he was by
himself because I know him, he was a good
Trelecki depo. at 19. Kossler maintains that he was not the one
who touched Crisanti when Crisanti was running toward or attempting to break up the fight.
Kossler depo. at 20-21, 27-28.
What happened after the fight ended is also in dispute.
According to Kossler:
Officer Crisanti approached us, you know, in a loud,
screaming, irate voice, pointing his finger at me
telling me next time I touch him I am going to jail
and I shouldn't be grabbing an Officer.
* * *
Then he continued to kind of force me back where I
was concerned about my face. . . . I thought I was
going to get physically punched or slapped or
something, and I was backing up.
And at one point, I believe he touched my nose. So I
told him, I just had sinus surgery, I just had
surgery on my nose, please, get your hand out of my
* * *
And then Officer Crisanti maced me.
Kossler depo. at 27-28. Kossler also testified that he moved
Crisanti's hand away from his own face just before being sprayed
by Crisanti. Id.
Crisanti's account of what occurred differs significantly from
what Kossler said:
I approached Kossler to ask him and then explain to
him not to ever touch me or another police officer
again, and to find out why he had done such a thing.
He became irate. He came at me. I put my hand up and
pushed him away.
* * *
He bent my middle finger and forefinger completely
back on my left hand.
* * *
I tried to pull my fingers free. I had to reach
underneath, with my right hand, and grab my OC and
spray him. At that time he released my hand.
Motion, ex. I, p. 2. Kossler was arrested and charged with
aggravated assault and public intoxication. Complaint at ¶ 11. In
a non-jury trial before the Honorable Robert E. Colville, Kossler
was found not guilty of aggravated assault and public
intoxication, but was found guilty of the summary offense of
disorderly conduct and fined one hundred dollars. Crisanti's
Answer at ¶ 13; Motion, ex. C, p. 4-6. Judge Colville also opined
on the record that Crisanti "acted reasonable." Motion, ex. C, p.
With respect to Donzi's motion, the primary dispute involves
the parameters of "secondary employment" by City of Pittsburgh
Police Officers. Essentially, the issue is whether Crisanti was,
at the time of the incident, acting as an employee/agent of
Donzi's, as a City of Pittsburgh Police Officer, or, perhaps, in
both capacities. At the time of the incident, "secondary
employment" by City of Pittsburgh Police Officers was governed by
Pittsburgh Bureau of Police Order Number 29-1 ("the Order").
Pltf's appx., ex. 7, p. 1; Crisanti depo. at 182-83. "It is the policy of the Pittsburgh Bureau of Police to permit members to
engage in secondary employment, whether compensated or
uncompensated, within the guidelines set forth in [the Order]"
Pltf's appx., ex. 7, p. 1. "Secondary employment" is defined as
"[a]ny employment that is conditioned on the actual or potential
use of law enforcement powers by the police officer employee."
Id. City of Pittsburgh Police Officers, "while engaged in
secondary employment, will conduct themselves as though they were
on duty, and will be subject to all departmental rules,
regulations, policies and procedures set forth by the Pittsburgh
Bureau of Police while engaged in a secondary employment
capacity." Id. Approval for secondary employment must be
obtained by individual officers from the Pittsburgh Bureau of
Police and is contingent upon the officer's "good standing" with
the Pittsburgh Bureau of Police, as well as other qualifications
not germane to this action. See id. at 1-2.
The Order also provides that "[a]ll members engaged in
secondary . . . employment must recognize that their primary
duty, obligation and responsibility is to the Pittsburgh Bureau
of Police," and that "[m]embers are subject to call at all times
for emergencies, special assignments or extra duty, and no
secondary or outside employment may infringe on these
obligations." Id. at 2. At his deposition, Crisanti testified
that his interpretation of his duties pursuant to the Order was
that "if someone is committing a crime, and I see it, or someone
requires police response, I have to respond. I have to act in a
manner as a police officer." Crisanti depo. at 183. Crisanti
responded affirmatively when asked whether he would "be
responding on behalf of the City of Pittsburgh Police
Department," and he added that "if I [were] working a detail and
there is a shooting up the street in another bar and they see
(sic) officers need assistance, I got to go." Id. at 183-84.
The parties dispute the scope and legal ramifications of
Crisanti's duties during "secondary employment" at Donzi's.
Crisanti testified at his deposition that he understood his
duties for Donzi's to be as follows:
Q: Tell me what duties you understand you were to be
performing for Donzi's.
A: My duties are as a for crowd control, a visible
deterrant (sic), and, if need be, if someone does
do something that would force me to have to arrest
them, then so be it. I mean, I have to do that. Q: Okay.
A: But the primary function is security and crowd
* * *
Q: As part of those duties, was it explained to you
that they wanted you to stand near the entrance of
Donzi's as people are coming into Donzi's?
A: Yes. And that is, A, for the visible deterrant
(sic), but also is, the purpose is to serve so
people know where we are at.
On many occasions . . . our function is not just for
. . . law enforcement, it is I have administered
first aid on several occasions down there for people
who had been falling off things and cracking their
skull . . ."
Crisanti depo. at 188-89.
After his state court charges were resolved, Kossler filed the
instant lawsuit against Crisanti and Donzi's in which he brings
claims for excessive force, false arrest and malicious
prosecution pursuant to 42 U.S.C. § 1983 and the Fourth
Amendment. Complaint at ¶ 1; Reply at ¶ 1. The Complaint also
states common law claims for assault and battery, false arrest
and malicious prosecution. Additionally, paragraph fourteen of
the Complaint appears to state a claim against Donzi's for
failure to train. Some of the language in Donzi's Reply
indicates, by omission, that no claim for failure to train is
being advanced, but the Counterstatement of Facts set forth in
Donzi's Reply includes facts which are clearly relevant to a
claim for failure to train. ...